The draft Anti-social Behaviour Bill: pre-legislative scrutiny - Home Affairs Committee Contents


The draft bill


14.  While reducing the number of instruments to tackle anti-social behaviour, the draft bill potentially widens the application and effects of the instruments available in four ways: a broader definition; a lower standard of proof; increased sanctions; and increased durations.
Instrument Definition of ASB Standard of proof Sanction Duration
Injunction to Prevent Nuisance and Annoyance (IPNA) Engagement or the threat of engaging in "conduct capable of causing nuisance or annoyance to any person" Balance of probabilities (civil standard) Up to 2 years imprisonment or an unlimited fine (contempt of court) Unlimited
Criminal Behaviour Order (CBO) Engagement in "behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the offender" Beyond reasonable doubt (criminal standard) for initial crime, but the CBO does not have to arise out of the facts upon which the conviction was found. On summary conviction, up to 6 months imprisonment and/or a fine of up to £5,000. On indictment up to 5 years imprisonment and/or a unlimited fine Minimum 1 year for children, 2 years for adults, maximum 3 years for children, indefinite for adults
Community Protection Notice Conduct that is "unreasonable" and "having a detrimental effect, of a persistent and continuing nature, on the quality of life of those in the locality" Balance of probabilities (civil standard) Fixed penalty notice or prosecution. Fine up to £2,500 for individuals or £20,000 for businesses, or fixed penalty notice up to £100 Unlimited
Dispersal powers Presence or behaviour in that locality that has contributed to or is likely to contribute to harassment, alarm or distress or the occurrence of crime or disorder Reasonable grounds for suspicion Up to 3 months imprisonment and/or fine of up to £2,500 Maximum 48 hours

Definitions

15.  Anti-social behaviour (ASB) is usually defined by its effect, rather than by the act itself and almost any act could, in certain circumstances, potentially constitute ASB. Two "thresholds" have developed for defining when behaviour becomes anti-social behaviour. ASB was first defined in the Crime and Disorder Act 1998 as behaviour that is "likely to cause harassment, alarm or distress"—the stronger test. For housing-related issues, the Housing Act 1996 defined ASB as conduct "capable of causing nuisance or annoyance to any person" and/or the use of premises for unlawful purposes—the weaker test.[13]

16.  One of the features of anti-social behaviour interventions that has attracted most criticism is the application of criminal law sanctions for breach of conditions applied because of civil wrongs.[14] Some witnesses, such as the Mayor's Office for Policing and Crime (MOPAC), believed that all anti-social behaviour should be treated as criminal, suggesting that ASB should be known as "Quality of Life Crime".[15] Martyn Underhill, Police and Crime Commissioner for Dorset, believed that a criminal injunction would be more effective than a civil injunction which, he said, "invariably have less power and tend to be more bureaucratic".[16] Swindon Borough Council noted that in its experience, the criminal character of breach of ASBOs gave the police more "ownership" of an order than with ASBIs, which led to better oversight and management of cases and enhanced protection for victims.[17]

INJUNCTION TO PREVENT NUISANCE AND ANNOYANCE (IPNA)

Availability

17.  The draft bill would further widen the scope of anti-social behaviour interventions. The weaker, "nuisance or annoyance" test currently applies for Anti-Social Behaviour Injunctions (ASBIs), but these are only available to social landlords and must relate to housing management functions and behaviour against persons within that neighbourhood.[18]

18.  The Injunction to Prevent Nuisance and Annoyance (IPNA) would be available to more agencies and uses the weaker threshold. Local authorities, housing providers, police, Transport for London, the Environment Agency and the NHS Business Services Authority would all be able to apply for an IPNA. Youth courts, county courts or the High Court can grant an injunction against anyone aged 10 or over where they have engaged or threaten to engage in ASB.

19.  We heard a number of suggestions for adding safeguards to this new, wider definition. Justice pointed out that a test of "necessity" was required for ASBOs—"that such an order is necessary to protect relevant persons from further anti-social acts by him"—and proposed that the same protection should be applied to IPNAs.[19] Others suggested that an assessment of the "harm" caused would be an appropriate safeguard.[20]

20.  The percentage of ASBO applications granted was already over 95% and this success rate reflected some cases of ASBOS being granted inappropriately.[21] Big Brother Watch proposed that a requirement that either "intent or recklessness" be demonstrated should be attached to the injunction, noting that "to some people politicians canvassing would comfortably meet this threshold, while junk mail or spam text messages would both seem to qualify" under the proposed threshold.[22]

Standard of proof

21.  The draft bill includes elements that would further conflate the civil with the criminal. Justice called for the criminal standard of proof to apply to the IPNA, along with guarantees of a fair trial in criminal proceedings pursuant to Article 6 ECHR.[23] It argued that "the injunctions are ASBOs in all but name but attract much milder behaviour, without the safeguards that are currently available before the criminal courts and applying criminal evidential standards".[24]

22.  Some witnesses, such as the UK Noise Association, welcomed the fact that the IPNA required a lower standard of proof than previous legislation.[25] However, several witnesses were concerned that this low-threshold test had the potential to bring much a much wider range of behaviour under the umbrella of anti-social behaviour, potentially covering almost any kind of activity, potentially prompting disproportionate responses to very minor bad behaviour. Camden Council called the definition "dangerously ambiguous". This was part of a long-term trend to lower the legal threshold for prosecutions, which had not resulted in any discernible reduction in levels of ASB.[26]

23.  Big Brother Watch highlighted that in the draft bill electronic tagging would be available in court proceedings relying on a civil standard of proof and argued that lowering the threshold to someone who has never been convicted of a criminal offence was a significant step.[27] Mark Dziecielewski was also concerned about tagging, noting that there was no provision in the bill for holding companies responsible for administering this kind of scheme—such as G4S—to account.[28] We share these concerns.

Breadth

24.  The IPNA grants judicial discretion to either prohibit the respondent from "doing anything" contained in the injunction, or to require the respondent to "do anything" contained in the injunction. This is clearly a broad power and is not qualified, save for the limited caveats contained within Section 5. This introduces specific flexibility for religion, work, school and court orders, but should grant wider judicial discretion to cover matters such as childcare arrangements or health needs. In general, specific prohibitions and requirements should be only those necessary and proportionate to address the behaviour.

Duration

25.  Long-lasting ASBOs have been criticised for making breach "almost inevitable" and without an end point to work towards, people have "little incentive to comply".[29] The Criminal Justice Alliance believed the minimum and maximum duration periods for the CBO would be far longer than necessary.[30] Justice suggested that IPNAs should last for a maximum of two years and should be reviewable during that period.[31] The Social Landlords Crime and Nuisance Group also argued that there should be provision for IPNAs to be varied by agencies other than the original applicant, in consultation with the original applicant.[32]

Penalty

26.  While breach of an IPNA does not in itself constitute a criminal offence, as breach of an ASBO on application does, it is open to a court to punish breach of an IPNA through criminal contempt of court proceedings. This could ultimately lead to up to two years' imprisonment or an unlimited fine.

27.  Breach of an Anti-Social Behaviour Order (ASBO) on application was a criminal offence, but breach of an Injunction to Prevent Nuisance and Annoyance (IPNA) is not. We welcome the move away from automatic criminalisation for breach in the case of the IPNA, which is likely to be the main tool in the new ASB regime.

28.  However, breach of this civil injunction could still ultimately lead to imprisonment. It is therefore concerning how much easier it is likely to be to obtain an IPNA than an ASBO. The IPNA is available on a lower standard of proof than the old ASBO on application, and available to more agencies than the old Anti-Social Behaviour Injunction (ASBI). Widening access to the IPNA risks imposing severe restrictions on more people and additional safeguards must be applied. For the IPNA, the threshold of "conduct capable of causing nuisance or annoyance" is far too broad and could be applied even if there were no actual nuisance or annoyance whatsoever. A proportionality test and a requirement that either "intent or recklessness" be demonstrated should be attached to the IPNA, as well as the requirement "that such an injunction is necessary to protect relevant persons from further anti-social acts by the respondent".

29.  We also believe that there should be a specific requirement for any individual prohibition or requirement to be necessary and proportionate for the purposes of addressing the behaviour that led to the application for an injunction.

OTHER INSTRUMENTS

30.  The threshold for a Criminal Behaviour Order is that the court is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to a person and considers that making the order "will help in preventing the offender from engaging in such behaviour". This is weaker than the current test in which the court considers whether the order is "necessary to protect persons from further anti-social acts by the offender".[33] It also places a new emphasis on the Order's utility as a means of helping the offender to address their own behaviour. We note that there is a mechanism to allow offenders over 16 to shorten the period a Criminal Behaviour Order applied for if they complete an approved course. We see no reason why someone younger should be debarred from this option.

31.  The new dispersal power empowers a constable to direct people to leave an area without the requirement for prior authorisation that applied to the previous dispersal powers. The proposed power would be available in the event of the public being harassed, alarmed or distressed, or the occurrence of crime and disorder. This is a lower threshold than the necessity to demonstrate a significant and persistent problem in the locality, which applies under the current regime.[34]

32.  The use of dispersal powers against behaviour "likely to" contribute to harassment, alarm or distress or criminal acts was noted as extremely subjective and its application in the case of any "crime or disorder" could allow it to be used in the case of crime completely unrelated to ASB.[35] We note that there is a specific exemption from dispersal powers for peaceful picketing and recommend that this be extended to cover all forms of peaceful protest.

33.  For dispersal powers, our witnesses pointed to the removal of key oversight structures built around multi-agency approval and risk assessment.[36] The current regime includes an exit strategy, community involvement and the responsibility not to displace the problem elsewhere. ACPO noted that the draft bill would only apply the oversight of police and crime commissioners after the powers were applied, which could result in disproportionate use of the powers and heightened tensions in some communities.[37] Several witnesses believed the maximum penalty of three months imprisonment for doing so was disproportionate.[38]

34.  Public Spaces Protection Orders (PSPO) could be applied to "all persons, or only to persons in specified categories or to all persons except those in specified categories" without taking into account individuals' intent or conduct. Big Brother Watch warned about a scenario where "a city centre has a PSPO for under 16s between 9pm and 6am in a specific area of the town centre, the Bill is drafted as to create a test of strict liability that would mean a 15 year old returning home at 10pm would not be able to walk across a town centre from a train station to a bus station".[39] It considered the option for an order to be issued for three years without a requirement for interim approval to be disproportionate, especially given that breach would be a criminal offence.[40] The Ramblers Association agreed that this power could be applied widely to places where the public has the right of recreation, such as registered common land and registered village greens and there appeared to be no restriction on the size or locality of spaces covered.[41]

35.  Each time successive Governments have amended the ASB regime, the definition of anti-social behaviour has grown wider, the standard of proof has fallen lower and the punishment for breach has toughened. This arms race must end. We are not convinced that widening the net to open up more kinds of behaviour to formal intervention will actually help to deal with the problem at hand. A duty to consult local authorities must be included in the dispersal power where it is applied for a period of longer than six hours. Public Spaces Protection Orders must include a requirement for six monthly interim approval. There should also be a clear exemption to dispersal powers where there is a genuine need to travel through the area.





13   As amended by the Anti-social Behaviour Act 2003; Anti-Social Behaviour Orders (ASBOs) were introduced by section 1 of the Crime and Disorder Act 1998 which came into force on 1 April 1999. That Act has since been amended by the Police Reform Act 2002, the Anti-social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005.

There was concern about inconsistent drafting in the bill, which refer at various to victims being "members of the public" and "those in the vicinity". Kirklees Council noted inconsistent terminology around closure notices and orders, ranging from "nuisance to members of the public" (clause 66(1)) to "public nuisance" (Explanatory Notes, paragraph 55) and "serious nuisance" ((clause 70), Explanatory Notes, paragraph 57). The Council pointed out that "public nuisance" has a specific common law meaning and recommended the consistent use of the term "serious nuisance". Back

14   Ev w96 [Justice], paragraph 6 Back

15   Ev w74 [MOPAC], paragraph 11 Back

16   Ev w17 [Martyn Underhill] Back

17   Ev w29 [Swindon Borough Council], paragraph 2.3 Back

18   Q 158 [Jeremy Browne MP] Back

19   Ev w96 [Justice], paragraph 16; Section 1(1)(b) CDA Back

20   Ev w3 [Kent Police] Back

21   Ev w44 [Criminal Justice Alliance], paragraph 7 Back

22   Ev w37 [Big Brother Watch], paragraph 8 Back

23   Ev w96 [Justice], paragraph 26 Back

24   Ev w96 [Justice], paragraph 12 Back

25   Ev w1 [UK Noise Association], paragraph 2.1; Ev w1 [Paddy Tipping], addendum Back

26   Ev w96 [Justice], paragraph 15; Ev w77 [Mark Dziecielewski]; Ev w44 [Criminal Justice Alliance]; Ev w37 [Big Brother Watch], paragraph 2; EV w8 [London Borough of Camden], paragraph 2.1 Back

27   Ev w37 [Big Brother Watch], paragraph 28 Back

28   Ev w77 [Mark Dziecielewski] Back

29   Ev 48 [SCYJ], paragraph 11; Ev w44 [Criminal Justice Alliance], paragraph 9 Back

30   Ev w44 [Criminal Justice Alliance], paragraph 9 Back

31   Ev w96 [Justice], paragraph 17 Back

32   Ev w68 [Social Landlords Crime and Nuisance Group], paragraph 5 Back

33   Ev w96 [Justice], paragraph 28 Back

34   Ev w96 [Justice], paragraph 35 Back

35   Ev w20 [ACPO], paragraph 18; Ev 46 [CIH], paragraph 2.6 Back

36   Ev w20 [ACPO], paragraph 17; Ev 42, Ev 45 [LGA], paragraph 2; Ev w8 [London Borough of Camden], paragraph 2.3; Ev w23 [Leicestershire Police], paragraph 4.2; Ev w13 [John Dwyer] Back

37   Ev w20 [ACPO], paragraph 17 Back

38   Ev w44 [Criminal Justice Alliance], paragraph 11 Back

39   Ev w37 [Big Brother Watch], paragraph 20 Back

40   Ev w37 [Big Brother Watch], paragraph 22 Back

41   Ev w51 [Ramblers and the Open Spaces Society], paragraph 8 Back


 
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© Parliamentary copyright 2013
Prepared 15 February 2013